Many legal discussions about time and deadlines in a personal injury action revolve around filing or answering something too late. Sometimes, an action can be filed too early. If a claim is added too early or too late, the litigation can either be dismissed or derailed. This is seen in a recent car accident case from the Third District Court of Appeal (No. 3D17-1086), which determined a third-party bad-faith action was filed prematurely against the defendant’s insurance company.

The plaintiff sustained an injury as a passenger in a vehicle after another woman struck the car. The Passing of timedefendant driver was insured with a bodily injury policy that provided coverage for $10,000 per person and $20,000 per occurrence. The injured passenger filed suit against the woman within a year of the accident but moved to amend the complaint to include the defendant’s insurer. In the amended complaint, the injured person added a third-party bad-faith claim against the defendant’s insurer.

The insurance company moved to dismiss, arguing the bad-faith claim had not accrued and was premature. Section 627.4136 of the Florida Statutes requires a person seeking an action of liability against another party’s insurance company to obtain a settlement or verdict against the insured of the policy first. The trial court did not dismiss the claim against the insurer, instead choosing to abate the action until the negligence case against the driver was resolved. The insurance company appealed.

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In a slip and fall case, the location of the accident often determines which venue is appropriate for a civil action. Sometimes if one files suit against a business, the injured person may choose to file suit in the state where the corporation’s headquarters are located. In an appellate decision out of the Third District Court of Appeal, the court reviewed whether or not the state court system was an appropriate venue for a slip and fall that occurred while a woman was about to embark on a cruise.

The injured passenger alleged the corporation had a duty to supervise, control, and direct the crowd using the escalator as they collectively boarded the ship. She claimed they failed to provide safe ingress and egress to the cruise ship by using a faulty entranceway. The cruise ship company moved to dismiss, arguing the venue was improper based on the forum selection clause.  Ship walkwaysWhen the passenger purchased her ticket, she agreed to all of the terms and conditions within it, including the selection of the U.S. District Court for the Southern District of Florida if an incident leads to litigation. The passenger asserted her case was properly filed in state court because the federal court lacked subject matter jurisdiction. The trial court agreed with the injured passenger and denied the defendant’s motion to dismiss, as well as the motion to reconsider. The cruise ship company appealed.

The state court of appeal noted the federal court’s general authority to hear maritime cases stems from the U.S. Constitution. They also looked at federal and state case law, which has long established forum selection clauses on cruise ship tickets are enforceable. The court concluded that federal court is the preferred venue, and it is only in the absence of admiralty jurisdiction when the proper venue is in the state court.

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When serious injuries are litigated in a car accident case, the injured party must show the jury the connection between the injury suffered and the accident. The injured person must also demonstrate the types of care needed to treat the long-lasting effects of the injury, along with the associated costs. This is often accomplished through the testimony of expert witnesses.Spinal column The Fifth District recently assessed the testimony of experts in a Florida uninsured/underinsured motorist accident case to determine whether or not the trial court should have awarded a directed verdict.

In this case, the plaintiff suffered injuries to her neck and spine after a car accident. The injured person and her husband sought UM coverage from their auto policy, which was denied. The case proceeded to trial, at which the injured woman and her neurosurgeon testified to the cause of the injury and its permanency. At the end of the insurance company’s case, the plaintiffs moved for a directed verdict, which was eventually granted after the jury verdict. The jury found the plaintiff suffered injuries, damages, and losses, granting $7,000 in lost wages. It did not find the woman suffered permanent injuries. The trial court granted the injured person’s motions for a directed verdict and a new trial.

Florida case law previously established a motion for directed verdict should only be granted when there is no reasonable evidence on which a jury can rely for its verdict in favor of the non-moving party. If there is any conflicting evidence, a directed verdict is not appropriate because factual determinations are to be made by the jury. This includes determinations of the permanency of an injury. A directed verdict for permanency based on expert testimony is disallowed when it is rebutted by another expert, the testimony is impeached, or other conflicting evidence is provided.

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Florida car accidents are often caused by poor choices made by other drivers or bad weather conditions. Occasionally, they are caused by hazards created by construction zones or the design of a roadway. The Third District Court of Appeal recently issued an opinion in a negligence action filed against a gas station. The plaintiff alleged a cut across a median requested and promoted by the gas station caused the errant car to strike the plaintiff’s car, causing her bodily injuries.  gas pumpThe claims made by the injured woman against the gas station were dismissed by the trial court, which was affirmed in part and reversed in part by the Court of Appeal.

The car accident happened on a four-lane road with two lanes of traffic on each side of a concrete median. The plaintiff stated another car pulled out of the gas station, went across the cut in the median, and joined the lane of traffic she was occupying. The injured woman claimed the car from the gas station caused her to lose control of her car and hit a palm tree. She did not allege any obstruction in her view.

The gas station purchased the property near the accident after making a deal with the city several decades ago. The gas station petitioned for a cut in the median so that traffic could enter and exit from both eastbound and westbound lanes. During the application process, the gas station submitted a traffic study. The plaintiff alleged that this was done improperly and that the gas station did not make necessary adjustments to their signage to deal with the foreseeable dangers to the public.

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Florida’s Fifth District Court of Appeal recently issued a ruling in favor of an estate seeking coverage from an auto insurer. A man suffered a fatal accident while riding his motorcycle, and the deceased’s estate sought uninsured motorist coverage benefits from his collector vehicle insurance policy. This policy provided $300,000 worth of coverage for stacked uninsured motorist (UM) coverage for $416 per year. The insurer denied the claim, and the estate filed suit. The insurer argued it was not required to provide uninsured coverage because the deceased was not in the vehicle at the time of this Florida motorcycle accident. The insurer highlighted several limitations and exclusions within the policy to support its argument.

Whenever an appellate court analyzes an insurance policy dispute, it first looks at the insurance policy to determine which sort of coverage was agreed between the parties. Case law for contracts has long Standing motorcycleestablished that courts must first look at the plain language. Auto insurance policies, however, are also governed by state statutes, which favor coverage in the presence of ambiguities or conflicting clauses. The policy in this case was designed to cover the collector vehicle and defined the insured as a policy-holder while occupying the covered vehicle. The policy additionally required the insured to own a principal means of transportation insured by a separate policy. Failing to do so would remove the coverage from the collector vehicle policy.

Both parties had moved for summary judgment in the lawsuit for UM benefits. The insurer looked at a prior decision in the Second District that held specialty insurance policies for antique cars are not required to provide UM coverage for accidents involving other vehicles. The insurer also pointed out the lower premium, which was calculated based on a more limited risk and only covered specific “collector” vehicles at that. The estate asserted the Second District came to the wrong conclusion, based on the conflict with Section 627.727 of the Florida Statutes (2015) and Florida Supreme Court precedent.

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When filing a Florida wrongful death case, an estate must attempt to name all of the claims of injury against all parties. Opportunities to correct or add claims or parties in a complaint exist but must be done within a statutorily specified amount of time. A recent Fourth District Court of Appeal decision provides insight into the timing and appropriateness of these types of additions.  Winter sky

The personal representative of the estate filed suit against the hospital and treating physician, alleging both were responsible for her husband’s negligent care, which led to his death. The estate first connected the doctor’s actions to the hospital by asserting he was working under the scope of agency of the hospital. It then moved to allege the hospital owed her husband a duty to exercise due care in its hiring and retaining of independent contractor physicians like the doctor who provided care to the decedent.

After the amendment to the complaint, the hospital filed a motion to dismiss, arguing the estate was trying to raise a new cause of action. The hospital stated the amendment was not related to the agency claim and was barred by the statute of limitations. The representative countered the original claim was not centered around the concept of agency, and there were direct allegations of negligence against the hospital. The estate asserted there was no basis for the defendant to believe it was making a claim the hospital was only responsible for the injuries, based on its relationship as an employer alone. The trial court allowed the amendment to stand.

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In all civil litigation, the right to appeal an order of the trial court is essential to the judicial process. Incorporating tiers of review injects a system of checks and balances. If one suffers an injury in an accident, files suit, is dealt an unfavorable ruling, and feels the court ruled incorrectly, one can appeal the decision by the trial court judge. Since there are statutory timelines for filing suit, there are timelines for an issue or verdict to be appealed. Statutory time limitations help establish finality and closure for litigants or potential parties. Even with these measures in place, it is not always clear when all appellate options are truly exhausted.  time movesThe Third District recently assessed whether an issue involving Personal Injury Protection benefits (PIP) could be re-examined in light of a state Supreme Court decision issued early in 2017.

The underlying legal issue in this Florida car accident case asked whether or not the PIP automobile insurance policy contained the required specific language to limit provider reimbursements. Section 627.736(5)(a)2.f. Florida Statutes (2013) allows a reduction of 80% of the maximum charges, but the insurer must provide notice it is choosing to elect this reduction to the insured. The medical provider, dissatisfied with the PIP payments issued to them by the auto insurer, filed suit in 2013 for what they considered to be the full amount of PIP payments obligated under the law. The trial court issued a directed verdict for the medical provider, based on its conclusion the auto policy language wasn’t specific, as required by the Florida statutes.

The insurer appealed to the appellate division of the circuit court but did not seek a stay pending review. The medical care provider also did not seek execution or other enforcement of the trial court’s judgment. In 2015, the circuit court appellate panel affirmed the final judgment against the insurer, based on the case law at the time of its decision. The circuit court panel noted in its decision that appeals in other district appellate courts addressed this issue but were in conflict with one another on what constituted sufficient notice. The Third District Court of Appeal did not have a decision at that time to follow.

Personal Injury Protection benefits are available to those who’ve suffered physical injuries in a Florida auto accident. Before PIP is distributed, Florida statutes require the deductible to be subtracted from the total medical care bill before the statutory reimbursement limitations are provided. In a recent district court of appeal decision, an auto insurer attempted to persuade the courts otherwise. In its appeal from the trial court’s calculation, the auto insurer argued the statutory limitations are applied before the deductible is subtracted from that amount.

In the underlying lawsuit, the injured party accumulated several bills for health care from one particular hospital after an auto accident. The total exceeded the $1,000 deductible in his insurance policy. Following the normal course of action, the injured man assigned his PIP benefits to the hospital.  The original hospital charge was $2,781. Busted tail lightTo calculate PIP, the hospital subtracted the deductible and multiplied the difference by 75%, as required by subsection 1.b, which was then multiplied by 80%, leaving a total of $1,068 due. The auto insurer provided payment but applied the 75% before subtracting the deductible. That amount was then multiplied by 80%, which led to an amount of $868.60 due. This was the amount provided to the hospital.

The hospital sued for the difference, arguing this was part of the PIP benefit the insurer owed it. The auto insurer denied liability for the amount and provided affirmative defenses. Both the provider and the insurer filed for summary judgment. The trial court entered summary judgment in favor of the hospital, adopting the calculation method applied by the hospital. The insurer disagreed, initiating the certiorari process.

Florida wrongful death cases stem from different types of accidents and injuries. Some may be caused by a vehicle collision, and others may occur at the hands of a negligent health care provider. In any scenario, the plaintiff and their counsel must scrutinize all of the relevant statutes that either affect the way proceedings unfold or present substantive challenges to obtaining the damages one seeks. In Florida, a medical negligence action requires a pre-suit investigation to determine whether or not there are reasonable grounds to believe the medical provider was negligent and caused the injury through this negligence.

A recently issued state Supreme Court decision analyzes one of these pre-suit requirements that allows each prospective defendant the ability to access protected verbal and written health Privacy Noticeinformation as part of their pre-suit discovery. The state’s constitution requires the injured party to authorize the release of any information that is potentially relevant to a claim of medical negligence. While irrelevant information is excluded, a claimant must still name her or his providers and dates of treatment. Failing to participate in this phase can lead to a dismissal of the claim.

Specifically at issue in this decision is defendants’ ability to unilaterally schedule an interview with health care providers if the claimant fails to do so within 15 days of a defendant’s request for an interview. Subsequent interviews can be requested to be arranged with only 72 hours’ notice. The personal representative and wife of the decedent at the center of this action filed suit against a treating physician, alleging his negligent care led to the deceased’s injury and death. From the beginning of the litigation, the plaintiff asserted the 2013 amendments allowing access to records in a medical malpractice pre-suit investigation violated the right to privacy under the state’s Constitution.

If a product causes serious injuries, the manufacturer can be held strictly liable for the injury. The manufacturer is accountable for a defective design or failing to warn of dangers. In a recent Eleventh Circuit Court of Appeals lawsuit, the manufacturer of a transvaginal mesh product appealed the final judgment awarding over $6 million to a woman substantially injured by its product. The injured woman’s lawsuit originated in West Virginia but was consolidated and transferred to the Eleventh Circuit with similar Florida product liability cases. The manufacturer argued the federal district court abused its discretion by consolidating the cases. The manufacturer also claimed the court erred by denying it a judgment as a matter of law because the plaintiff failed to present sufficient evidence for both the design defect claim and the failure to warn claim.

The product at the center of the litigation was a transvaginal mesh device prescribed and transplanted by doctors. The product is a mesh sheet that is implanted to prevent the uterus, rectum, or bladder from falling through the vagina. The material making up the mesh was made from a type of plastic and cleared by the FDA, based on its similarity to an equivalent device on the market. The plaintiff had the mesh implanted in 2008 after suffering from pelvic Rusted Meshorgan prolapse. Following the surgery, she experienced pain and bleeding during intercourse, pelvic pain and pressure, and incontinence. Six months after the surgery, a visit to the doctor revealed she had exposed mesh in her vagina. The doctor operated in-office to trim the exposed mesh, but that did not alleviate the discomfort. Eventually, a second procedure was needed, which resolved the pain but caused her to lose sensitivity in her vagina.

On appeal, the defendant argued the consolidation caused unacceptable prejudice. The Circuit Court was unpersuaded by this, looking at established case law in holding the decision to consolidate is purely discretionary. Many factors are considered when weighing consolidation, including the burden on the parties, witnesses, the availability of judicial resources, and the length of time to conclude several cases as opposed to one. Prejudice against the opposing party is also assessed, but courts look at available remedies to mitigate the risks of confusion and prejudice. The appellate court concluded a joint trial was appropriate because there was substantial overlap in the evidence, facts, witnesses, and issues. The district judge had also utilized jury instructions to remind the jury there were multiple plaintiffs with unique aspects to their cases.

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